Same-Sex Divorce

The Second District Court of Appeals has recently ruled in the case of Thomas v. Thomas, 40 Fla. L. Weekly D971 (2nd DCA April 24, 2015), that a Florida court has jurisdiction to dissolve the marriage of a same-sex couple which was legally entered into in another state. In so ruling, the court relied upon the Full Faith and Credit Clause of the United States Constitution which provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Art. VI, § 1, U.S. Const.

The case involved a same-sex couple who were legally married in Massachusetts and subsequently moved to Florida. Once here, one party filed a petition for dissolution of marriage and the other opposed arguing that because Florida did not recognize same-sex marriage, the court had no jurisdiction to dissolve the marriage even though it had been legally entered into in another state. One argument against allowing the divorce to occur was presented by the respondent who refers to “a societal inducement for opposite-sex couples to marry, thus decreasing the percentage of children accidentally conceived outside of a stable, long-term relationship.” The court correctly noted that

“. . .this argument seems to ignore the biological fact that same-sex couples do not contribute to the problem of children ‘accidentally conceived’ outside of a stable, long-term relationship because, as a matter of pure biology, same-sex couples simply cannot ‘accidentally conceive’ children. . .

The Attorney General identifies a different legitimate purpose, arguing that Florida’s refusal to recognize same-sex marriage properly furthers Florida’s long-standing history of defining marriage as being between a man and a woman. . .

The court noted that this argument made little sense.

. . . If the policy is to prevent, eliminate, discourage, or otherwise preclude same-sex marriage in Florida, permitting the courts to dissolve same-sex marriages that have been previously entered into in other states would arguably further that policy by reducing the number of same-sex married couples in Florida. . .

The appellate court, therefore, reversed the trial court order dismissing the petition for dissolution of marriage.

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